Practice/Industry Group Overview
Antitrust laws are a critical concern for companies of all sizes. While some companies want to avoid antitrust problems by getting advice before they occur, others find themselves confronted with government investigations or law suits. Despite the impression that the press may give that government agencies are “soft” on antitrust, there continue to be numerous investigations and lawsuits each year. Further, the vigor with which potential antitrust violations are investigated does not change depending upon which political party is in power. Dramatic changes in the 1980s to the interpretation of certain antitrust laws have been universally endorsed – making antitrust regulation a complicated maze for companies to navigate.
Greenberg Traurig’s Antitrust & Trade Regulation Group advises hundreds of clients every year. We have broad experience in handling Hart-Scott-Rodino pre-merger filings; analyzing and defending mergers, acquisitions and joint ventures; advising on business conduct; defending companies that are investigated by the Federal Trade Commission, Antitrust Division of the Department of Justice or State Attorneys General; and litigating when necessary. Many of our attorneys have worked for the Antitrust Division of the Department of Justice, the Federal Trade Commission or state attorneys general, so they understand various governmental bodies’ approaches to antitrust matters.
As the global economy expands, U.S. companies are faced not only with domestic antitrust concerns, but with the challenge of conforming their activities to comply with other countries’ antitrust laws, which vary widely. GT’s international offices and strategic alliances enable us to draw on the capabilities of international competition attorneys who work closely with our U.S. antitrust attorneys.
- Mergers and acquisitions
- U.S. and foreign pre-merger filings
- Federal and state civil and criminal investigations
- State and federal advertising laws and FTC trade regulations
M&A and Joint Ventures
GT attorneys each year review hundreds of transactions for antitrust purposes. Our work has involved representing clients in a multitude of industries – including manufacturing, wholesale, retail and services – with products ranging from traditional smoke-stack ones to complicated high-tech services.
GT’s antitrust attorneys have represented companies and advised on transactions of all sizes – from large corporations with billions of dollars of sales to considerably smaller companies and transactions in the billions of dollars, as well as lesser amounts. Additionally, we have experience dealing with acquisitions where one of the parties is in bankruptcy.
Our attorneys have broad experience with the Hart-Scott-Rodino pre-merger law and rules and regulations. We regularly advise clients on whether a transaction meets the filing thresholds or is exempt, as well as make the appropriate filing and follow it through the review process. To help clients avoid full-phase investigations – or “Second Requests,” as they are commonly called – our recommended approach is to:
- Examine a transaction early in the negotiation process to determine if there are antitrust risks, the extent of the risks, and the likelihood of an investigation
- Formulate a defense well in advance of the Hart-Scott-Rodino filing, so that we will be prepared to make a presentation to the federal government (and state attorneys general) as soon as questions surface about the transaction
- Retain economists to assist in the defense when warranted
Should a Second Request be unavoidable, our attorneys can:
- Negotiate the scope of the requested information
- Represent parties at investigatory hearings
- Appeal staff recommendations within the government agencies to the FTC Commissioners or to the Assistant Attorney General in charge of the Antitrust Division
- Negotiate consent decrees
- Negotiate with compliance officials at the government agencies on divestitures – representing either buyers or sellers of divested property
In addition, our attorneys regularly:
- Advise clients on mergers involving horizontal issues, which most commonly raise issues, as well as with transactions concerning vertical or distribution issues
- Counsel clients on the Merger Guidelines which government agencies use in evaluating mergers
- Defend mergers involving every element in the analysis, such as product and geographic market definition, anticompetitive effects, ease of entry and the failing company doctrine
- Represent customers and competitors in opposing certain transactions – which in turn gives us insight into the types of concerns that arise and helps us advise parties to acquisitions about possible opposition
- Assess the applicability of foreign pre-merger and antitrust laws in the European Union, its member states, other individual European countries, Asia and Latin America, for cross-border transactions
- Provide in-depth analysis of major acquisitions, frequently involving novel issues, for clients’ investment purposes.
GT advises clients on whether their proposed or actual practices could create antitrust issues and recommends alternative approaches which could eliminate or reduce antitrust risk. Our attorneys:
- Advise on issues arising in the distribution area, such as resale price maintenance, maximum and minimum price agreements, tying arrangements, minimum advertised pricing policies (known as MAP) and “Colgate” unilateral pricing
- Counsel clients regarding issues that can arise when a seller is also a competitor of its customer (e.g., dual distribution)
- Guide clients in means of terminating distributors to reduce the risk of lawsuits
- Counsel clients regarding price-fixing, customer and territory allocation and alliances of various sorts with competitors
- Conduct antitrust audits to determine compliance with the antitrust laws and to advise clients on any changes that should be made in their business conduct
- Prepare antitrust compliance policies, which are distributed to appropriate employees and may be accompanied by oral compliance sessions
- Advise trade associations and individual members about competitive issues and procedures they should follow to help them avoid antitrust issues
Members of our team have previously worked for the FTC and various state attorneys general enforcing consumer protection laws. We use that experience to advise and defend firm clients. Our attorneys:
- Review client advertisements for compliance with federal and state laws on deceptive advertising
- Advise clients about the application and scope of the FTC’s myriad rules and regulations, which are intended to protect consumers by requiring certain disclosures in advertisements and promotional literature
- Counsel companies on regulations which apply to all companies and those which are limited to specific industries or products, such as insulation, textiles, video equipment, cigarettes, funeral services and credit reporting
- Advise companies on the FTC’s Telemarketing Sales Rule, including the “do not call” provisions (and related state and FCC laws), use of the word “free,” negative option plans and endorsements
- Defend clients in FTC and state attorney general investigations of their literature and practices and, when appropriate, negotiate consent decrees on their behalf
Greenberg Traurig’s antitrust litigation group includes attorneys with trial experience both with the federal antitrust enforcement agencies and against them. We are currently litigating civil and criminal antitrust cases in the United States and Europe. Our international practice allows us to assemble experienced antitrust litigators to prosecute or defend and try a broad range of antitrust claims. We have experience and depth in virtually every aspect of antitrust litigation. Our lawyers are particularly adept at litigating claims in regulated industries, both in federal court and before administrative agencies.
Articles Authored by Lawyers at this office:
Pricing Practices - Latest UK Developments
Lisa Navarro,Lisa Navarro,Irving Scher,Irving Scher, November 22, 2013
The topic of resale price maintenance, and the line between legitimate and illegitimate management of the pricing of products placed on the market, is one which will always challenge companies involved in distribution relationships. As this article demonstrates, any companies that think that...
U.S. Antitrust Agencies Issue Model Waiver of Confidentiality
Mary K. Marks, November 22, 2013
On September 25, 2013, the Federal Trade Commission (FTC) and Department of Justice (DOJ) announced the issuance of a joint model waiver of confidentiality for individuals and companies to use in merger and civil non-merger matters involving concurrent review by the DOJ or FTC and non-U.S....
Appreciability Analysis: Does the Future of an EC Law Doctrine Hang in the Balance?
Hans Urlus,Emilie van Hasselt, November 21, 2013
Traditionally, EU competition law had two separate tests for determining whether an agreement is anti-competitive—the object test (the agreement’s purpose) and the effects test (its actual effect on competition). Thus, an agreement would be prohibited as anti-competitive either because...
Follow-On Private Antitrust Damage Suits In the EU: The Netherlands Experience
Hans Urlus,Emilie van Hasselt, November 21, 2013
In the European Union (EU), unlike the United States, the availability of private antitrust actions has been extremely limited to date. Although the number of such actions has increased over the past decade, the institution of private damages antitrust actions remains underdeveloped. In the EU, the...
The Federal Trade Commission Again Targets 'Made-In-USA' Claims
Irving Scher, November 11, 2013
After a more than 10 year hiatus, the Federal Trade Commission (FTC) has again brought an enforcement action under its 1997 Policy Statement on “Made in USA” claims. The Policy Statement prohibits advertising a product as “Made in USA” (or equivalent statements) unless...
The Draft EU Data Protection Regulation: Where Are We Now, And Where Are We Going?
Luke Dixon, September 16, 2013
Recent news on both sides of the Atlantic has included considerable commentary on the issues of data privacy and international data flows. With an important vote on the issue due to take place in the EU Parliament next month, now seems like a good time to bring readers up to date with progress on...
FTC Merger Guidance Roundup: Summer 2013
Mary K. Marks, August 22, 2013
The FTC has not taken a vacation from providing merger guidance this summer, and Labor Day is still to come. So far, the Comission has issued guidance regarding the “pull and refile” process, levied fines for Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) violations, challenged...
Supreme Court Extends PLIVA to Preempt Certain Design Defect Claims Against Generic Manufacturers
Robert P. Charrow, August 13, 2013
In Mutual Pharm. Co., Inc. v. Bartlett, No. 12-142 (U.S. June 24, 2013), the Supreme Court, in a 5-4 decision building on PLIVA, Inc. v. Mensing, 564 U. S. --- (2011), held that the Food, Drug, and Cosmetic Act preempted a state law design defect action against a generic drug manufacturer that...
FDA Defines 'Gluten-Free'
Eleanor (Miki) A. Kolton, August 07, 2013
On August 5, 2013 the Food and Drug Administration (FDA) published a final rule defining the term "gluten-free" for voluntary use in food labeling. Defining the term "gluten-free" is meant to help consumers, especially those living with celiac disease, gain comfort that items...